Peer to Peer Magazine

June 2010

The quarterly publication of the International Legal Technology Association

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and architects, to name a few. Susskind provides no reason that lawyers should be singled out. In fact, who more than doctors has been impacted by technology in the last 50 years? The professional relationship is founded on trust. The client (or patient or customer) entrusts some important personal interest to the professional: health, legal affairs, finances and so on. He or she entrusts this to the professional because the professional possesses expertise: A specialized skill or ability, generally gained through a combination of personal aptitude, education and experience. In some sense, the professional “knows better” what is good for the client. These guild-like professions withstood the scythe of laissez- faire capitalism that cut down traditional, craft-based guilds in the 1800s. Virtually all Western societies recognized that it was immensely hazardous to allow free market competition in the provision of professional services. Flawed professional service could have catastrophic consequences that might not become apparent until many years later. Professionals bring specialized abilities to bear on a client’s interests and concerns. We exercise professional judgment for our clients’ benefit. Professional advice is not simply a decision tree that can be captured and reproduced at will. The work of a lawyer involves, more than anything, furthering the client’s interests and values by fitting them within the lawyer’s understanding of the law. It is now said that the requirement of professional qualification may be eliminated because of the impact of technology. It makes me think of a modern doctor’s appointment: The patient tells the doctor what he or she is suffering from, based on Internet research. Then the doctor tells the patient what’s really wrong. The fundamental proposition remains the same. Lawyers, like doctors, architects, accountants, dentists and other modern professionals, have the privilege and responsibility of self- governing professions because of the catastrophic impact that errors in legal advice, medical advice, architectural design and dental services can have on the general public. It is only when that becomes irrelevant or unnecessary that one can rationally speak of the end of lawyers. Technology has not (yet) made people smarter. It has not (yet) given them better legal judgment. When that will come is a question for another decade. E-Discovery: Evolutionary, Not Revolutionary In his Law2020 case study, Alber raises the mushroom cloud of modern discovery. I agree wholeheartedly with his analysis. Work that can be done more efficiently by non-lawyers should be. Again, though, this is not a new development. A similar course of development occurred with respect to paper discovery. In the “old days” of the 1980s, lawyers used to review hard copy documents. Secretaries would prepare lists of those documents, and provide them to the other side. The other side would then ask for copies, which the firm happily provided, billing somebody for the photocopying. There was an evolution as technology was applied to the process. Lists of documents began to be prepared in databases, rather than word processors. Objective coding was taken up by junior lawyers, then paralegals, then secretaries, then by offsite resources. Gradually, more and more of the work moved out of the hands of the lawyer; the resources were “right-sized” to make the best use of the technology. This is but a recent example of an evolutionary process common in the history of the legal profession — it was, after all, the lawyers that brandished those quill pens. In the End Susskind, Alber and I all share a belief in and an enthusiasm for the promise of technology in law practice. We differ only in our assessment of what is likely. It will be most interesting to see how it all turns out. ILTA David Hill, City of Vancouver Law Department David’s dual interests in law and technology have intertwined since law school in Vancouver, BC in the early 1980s. After some years of law practice, he became a technology educator for a local continuing legal education provider. He then worked as a technology consultant, and next as both a lawyer and as the technology director in a large Vancouver firm. He has since moved back to practice, in Labour, Employment and Human Rights law in the City of Vancouver’s Law Department, where he is also involved in departmental and city-wide technology initiatives. David has made numerous presentations about the use of technology in law for organizations such as the Canadian Bar Association, the Canadian Corporate Counsel Association, several law schools and law societies, and at national and international conferences. He is a keen ILTA supporter, and plans to give a presentation at ILTA 2010 (tentatively titled “Is the Sky Really Falling”), as a counterpoint to the notion that technology is about to make lawyers obsolete. He is also a proponent of Free and Open Source Software, and he is investigating ways to use Open Source in practice. David can be reached at david.hill@vancouver.ca. 56 www.iltanet.org Peer to Peer

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